Products Liability and Safety Update January 2008

January 2008

From the editors of Wolters Kluwer Law & Business, this update describes important developments from CCH products liability and safety publications.

If you have any comments or suggestions concerning the information provided or the format used, we'd like to hear from you. Please send your comments to pamela.maloney@wolterskluwer.

Consumer Product Safety

Pool and Spa Safety Act Signed into Law
The Virginia Graeme Baker Pool and Spa Safety Act, named after the 7-year-old girl who drowned in a hot tub when the suction force at the drain entrapped her under water, was enacted as Title XIV of the Energy Independence and Security Act of 2007 (Public Law Number 110-140) which was signed by President Bush on December 19, 2007. The safety legislation requires that every swimming pool and spa drain cover manufactured or distributed in the United States must conform to specified entrapment protection standards. The act requires public pools and spas to be equipped with anti-entrapment devices that release vacuum pressure, limit suction, automatically shut off pumps, or disable drains. The new law also establishes a program of state grants that are contingent upon a state's imposition of statutory requirements for drain entrapment prevention devices on all pools and spas, and for the enclosure of outdoor residential pools and spas with barriers to prevent unsupervised access. A state may use the grant funds to hire and train personnel to implement and enforce the state's pool and spa safety law, to educate pool and spa construction, installation, and service companies about the safety standards, and to educate pool owners and operators, and other members of the public, about the safety standards and about the prevention of entrapment and drowning. (CCH Consumer Product Safety Guide, January 14, 2008; ¶10,850 (ip access users))

House Panel Clears Bill for CPSC Funding, Safer Standards
By Sarah Borchersen-Keto, CCH News Bureau Staff Writer
The House Energy and Commerce Committee approved legislation that would redefine safety standards for toys and other goods manufactured domestically and abroad. The bill would also create a tougher lead safety standard, and significantly increase funding and staffing for the Consumer Product Safety Commission. Key provisions of H.R. 4040, the Consumer Product Safety Modernization Act, require mandatory safety standards for nursery products, mandatory third-party testing of children's products, and tracking labels to aid recalls. The bill also bans lead beyond a minute amount in products intended for children under 12 and the sale and prohibits export of recalled products. The cap on civil penalties would be increased to $10 million and state attorneys general would be authorized to enforce the law. Funding set aside for the CPSC would increase from $80 million in fiscal year 2009 to $90 million in 2010, and $100 million in 2011, and the agency would be restored to a full panel of five commissioners, with a ban on industry-sponsored travel by CPSC commissioners. The Energy and Commerce Committee also approved H.R. 1216, the Cameron Gulbransen Transportation Safety Act, to set mandatory standards requiring auto manufacturers to adopt safety measures designed to decrease the number of preventable non-traffic, non-crash related accidents. The bill addresses situations such as children being backed over in driveways, strangled by power windows, or killed when they inadvertently shift a car into gear causing an accident. The bill would direct the Transportation Secretary to issue regulations ensuring that power windows automatically reverse direction when they detect an obstruction and that drivers are provided with means of detecting the presence of a person or object behind their vehicles, and allow for the vehicle service brake to be engaged to prevent vehicles from unintentionally rolling away. (CCH Consumer Product Safety Guide, January 14, 2008)

NHTSA Proposes Amendments to Platform Lift Standards
Proposed amendments to Federal Motor Vehicle Safety Standard Nos. 403, "Platform lift systems for motor vehicles," and 404, "Platform lift installations in motor vehicles," would revise the requirements for public use platform lighting, lift control lighting, threshold warning signal location, performance, and testing, and specifications for wheelchair test devices and wheelchair retention device tests. However, NHTSA denied a request to include anti-tipping devices in the wheelchair test device specifications. The platform lift standards were enacted to prevent injuries and fatalities resulting from the operation of platform lifts designed to carry passengers who rely on mobility aids, wheelchairs and scooters to facilitate movement into and out of motor vehicles. The standards specify dimensions and size limits for platform protrusions, and distances between the platform and the ground or the floor of the vehicle. The standards also establish performance tests, and require handrails, threshold warning signals, and retaining barriers. Comments on the proposed rule must be received by February 19, 2008. (CCH Consumer Product Safety Guide, January 14, 2008; ¶40,710 (ip access users))

New Bill Would Require Bond for Imported Products, Food
The Food and Product Responsibility Act of 2008 aims to protect consumers from unsafe imports by holding manufacturers and importers responsible for damages resulting from dangerous products. The bill, introduced on January 17, 2008, by Rep. Pete Visclosky (D-Ind.), is intended to reduce the number of consumer product and food recalls affecting Americans. The bill would require manufacturers and importers to obtain a “Recall Responsibility Certificate” before introducing a covered product into the stream of commerce. The certificate would be issued by U.S. Customs and Border Protection upon proof that the manufacturer has sufficient insurance or other means to cover all costs associated with a potential recall of the product and all compensatory damages, including attorneys' fees, that could arise from products liability or other lawsuits associated with any defect in the product. Covered products include replacement equipment for motor vehicles, including tires; food, drugs, and cosmetics; biological products for the prevention, treatment, or cure of disease; consumer products; meat or meat food products; poultry or poultry products; and eggs or egg products. The legislation would be phased-in over two years in order to allow manufacturers and the insurance market adequate time to comply. (CCH Consumer Product Safety Guide, January 28, 2008)

NHTSA Changes Standards for Event Data Recorders
The standards for Event Data Recorders (EDRs) at 49 CFR Part 563 were amended by a final rule that extended the compliance date, simplified data filtering requirements, clarified the standards, and made other technical changes. EDRs are used to collect crash information that is then used by NHTSA and vehicle manufacturers to better understand crash events and the performance of motor vehicle safety systems, and to develop safer vehicles. Since its inception a decade ago, EDR technology has evolved in terms of capabilities and presence in the marketplace. Current EDRs are capable of collecting not only data regarding vehicle acceleration and deceleration, but also certain complementary data including driver inputs like braking and steering, and vehicle system status. In an August 2006 final rule [CCH Consumer Product Safety Guide ¶41,948] NHTSA attempted to standardize the data obtained from EDRs, to get the right data in sufficient quantity, and to assure the availability of EDR data to intended users, beginning with model year 2011 passenger vehicles and light trucks. The agency also specified a minimum core set of required data elements and a corresponding set of requirements for the range, accuracy and resolution of the required data elements, and established standards for the survivability and retreivability of EDR data following a crash event. After reviewing petitions to amend the August 2006 final rule, NHTSA decided to grant the petitions, in part, by making technical changes that include a later compliance date of September 1, 2012 for most vehicles, and of September 1, 2013 for vehicles manufactured in two or more stages. The agency also removed what it determined to be a superfluous data filtering step in order to prevent EDR data from being filtered beyond usefulness, added new definitions, and clarified that the standard specifies a format for reporting, not recording, event data. Changes were made to the standard, which originally compromised the ability of EDRs to process and prioritize data from closely following events by requiring EDRs to erase recorded data before recording new data of airbag deployment, now allowing the EDR to simply overwrite, rather than erase, the previously recorded data, and clarifying how multiple events are to be prioritized. The agency, however, denied petitions to include requirements for additional data elements, to make the data survivability requirements more rigorous, and to require a mechanical lockout port to prevent EDR data tampering. The final rule is effective March 14, 2008. (CCH Consumer Product Safety Guide, January 28, 2008; ¶41,974 (ip access users))

Products Liability

Texas Clarifies Definitions of “Manufacturing Defects,” “Producing Cause” for Juries
Two frequently submitted jury instructions one giving the definition of a “manufacturing defect” and the other the definition for “producing cause” under Texas law were rejected as incomplete by the Texas Supreme Court. The court addressed both issues in a case involving a worker who was injured when he lost control of his new pickup truck and struck two parked vehicles. The high court found that Texas Pattern Jury Charge (PJC) 71.3 was too broad because it omitted the essential elements necessary for a jury to distinguish between a design defect, which required proof of an alternative design and a manufacturing defect, which required proof that a product deviated from its intended design Absent these additional elements, a jury would be invited to improperly base liability solely on the fact that a product failure occurred—a level of proof rejected under Texas law. The court determined that PJC 70.1, which defines a “producing cause,” was too board because it failed to include the element of substantiality. The court criticized the PJC's use of the terms “efficient” and “exciting” to describe a producing cause because they were not used in their modern context and, therefore, were not helpful to the jury. The court suggested a more easily understood definition of producing cause as a cause that is a “…substantial factor in bringing about an injury, and without which the injury would not have occurred.” In light of its past approval of the PJC instructions, the court concluded that the appropriate remedy in this case was to reverse and remand the decision for a new trial. (Ford Motor Co. v. Ledesma, Tex. S.Ct.; CCH Products Liability Reporter, January 30, 2008.

PLCAA Protection Fatal to D.C. Lawsuit Against Assault Weapon Makers
A lawsuit brought by the District of Columbia along with a group of individual plaintiffs seeking to hold various assault weapons manufacturers liable under a District of Columbia statute was dismissed by the District of Columbia Court of Appeals under the federal Protection of Lawful Commerce in Arms Act (PLCAA). The District of Columbia statute, the Assault Weapons Manufacturing Strict Liability Act (SLA), holds manufacturers of assault weapons and machine guns strictly liable for injuries resulting from the discharge of the weapons within the District. The PLCAA, however, sought to protect people and entities engaged in the lawful sale of firearms from tort liability. The plaintiffs argued that an exception in the federal statute for civil actions in which a manufacturer or seller knowingly violated a state or federal statute protected its lawsuit from dismissal, pointing to the SLA as the violated statute. However, the appeals court found that the plaintiffs reliance on the SLA as the statutory violation was misplaced because the SLA lacked any particular standards of care or reasonableness. The “violation” of the general duty of care imposed under a strict liability tort law was not of the type of statutory violation the authors of the PLCAA reasonably intended. In addition, the court ruled that the application of the federal statute to dismiss a lawsuit authorized under the District of Columbia statute did not violate the separation of powers or due process principles embodied in the Fifth Amendment. (District of Columbia v. Beretta USA Corp., D.C. Ct. App.; CCH Products Liability Reporter, January 30, 2008; ¶17,899 (ip access users))

Missouri Blocks Sharing of Confidential Vehicle Design Documents
It was improper for discovery documents that were provided under a protective order in a wrongful death/products liability action against a motor vehicle manufacturer to be shared with plaintiffs in similar litigation against the same manufacturer, according to the Supreme Court of Missouri. The lawsuit involved a wrongful death action brought by the parents of a driver who was killed in a single-vehicle rollover accident. The vehicle's manufacturer agreed to produce numerous documents related to the vehicle's stability design that it asserted contained trade secrets and other confidential information, as long as they would be subject to a non-sharing protective order. After the lawsuit was settled, the trial court granted a motion by the parents that expanded the scope of the protective order to allow the documents to be shared with lawyers and experts involved in similar litigation against the manufacturer. The Missouri high court explained that the scope of the original protective order could only be expanded through mutual agreement in the settlement process or through a showing of good cause by the parents. Neither of these two conditions were met, according to the high court (Ford Motor Co. v. Manners, Mo. S.Ct.; CCH Products Liability Reporter, January 16, 2008; ¶17,884 (ip access users)).